| Iannuzzi v Town of Wallkill |
| 2008 NY Slip Op 06962 [54 AD3d 812] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Victor Iannuzzi et al., Appellants, v Town of Wallkill,Respondent. |
—[*1] Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd PLLC, New Windsor, N.Y. (Adam L.Rodd and Stephen J. Gaba of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Orange County (Owen, J.), dated September 27, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
While the plaintiff Victor Iannuzzi (hereinafter the injured plaintiff) was walking on anunpaved dirt path in a public park owned by the defendant, he allegedly tripped and fell over theend of an in-ground electrical conduit pipe which protruded approximately one inch above theground. The injured plaintiff claims that he injured his elbow, knee, back, and shoulder as aresult of the fall.
Initially, we note that the Supreme Court's finding that the plaintiffs' action was barred by thedefendant's prior written notice statute was erroneous. The unpaved dirt path where the injuredplaintiff fell does not constitute a sidewalk within the meaning of the defendant's prior writtennotice statute (see Code of Town of Wallkill § 169-1; Davis v County ofNassau, 166 AD2d 498 [1990]).
However, the Supreme Court properly granted the defendant's motion for summary judgmentdismissing the complaint. "To hold a property owner liable for an accident caused by a dangerousor defective condition on the property, a plaintiff must establish that the owner created thecondition or had actual or constructive notice of it" (Dulgov v City of New York, 33 AD3d 584, 584 [2006]; seeGordon v American Museum of Natural History, 67 NY2d 836 [1986]). Here, the SupremeCourt correctly [*2]found that the defendant established its primafacie entitlement to judgment as a matter of law by submitting affidavits of its employeesdemonstrating that it neither created nor had actual or constructive notice of the allegeddangerous condition (see Gordon v American Museum of Natural History, 67 NY2d 836[1986]; Dulgov v City of New York, 33 AD3d at 585). In opposition, the plaintiffs failedto raise a triable issue of fact (see Daniely v County of Westchester, 297 AD2d 654[2002]; Verdes v Brooklyn Union Gas Co., 253 AD2d 552 [1998]). Spolzino, J.P.,Lifson, Dickerson and Chambers, JJ., concur.